Weis & Jennett Marble Co. v. Gardiner
| Decision Date | 06 November 1917 |
| Citation | 198 S.W. 424,198 Mo.App. 35 |
| Parties | WEIS & JENNETT MARBLE COMPANY, Appellant, v. WILLIAM W. GARDINER, Defendant, SIMON D. ROSSI, Respondent |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Kent K. Koerner, Judge.
Judgment reversed and cause remanded. (with directions.)
Earl M Pirkey for appellant.
(1) A party who furnishes work and materials for altering repairing or improving a building under contract with a party holding a leasehold or licensed interest in the property is entitled to a lien on the materials furnished and on the building and on the leasehold or licensed interest. Section 8216, R. S. as amended by the Session Acts of 1911, page 312. (2) Where a lease binds the lessee to make improvements and provides that the improvements shall revert to the owner this constitutes the lessee the agent of the owner to subject the building to a lien within the meaning of the mechanic's lien law. Dougherty-Moss Lumber Co. v. Churchill, 114 Mo.App. 578; Ward v. Nolde, 259 Mo. 285. (3) The mechanic's lien law should be liberally construed in favor of the lien. Crane Co. v. Epworth Hotel, Construction & Realty Co. et al., 121 Mo.App. 225. (4) The right to go on or over land is considered by the Missouri law to be a licensed interest. Hurt v. Adams, 86 Mo.App. 79, paragraph 2.
Geo. W. Lubke and Geo. W. Lubke, Jr., for respondent.
(1) The lease not conveying any interest in the lots on which the building in question is situated is therefore clearly a lease of two apartments in the building, the rest of which may be held separately by other tenants and the defendant Rossi, and therefore furnishes no basis for a mechanic's lien. The precise question was decided by this court in Seidel v. Bloeser, 77 Mo.App. 172. (a) In Oliver v. Dickison, 100 Mass. 114, it is said that any right-of-way or other easement necessary to the enjoyment of premises granted will pass as appurtenant thereto, although there is no express mention of easement, privilege or appurtenant. This is a well-established rule applicable to all grants of real estate (2 Wash. on Real Property, 667; 3 Kent's Com. [6 Ed.], 421; U.S. v. Appleton, 1 Summers, 492; Streets v. Seldens, Lessee, 2 Wall. 177; Witte v. Quinn, 38 Mo.App. 691). (2) As against the owner of the fee upon which the building is located, there cannot be a mechanic's lien against part of the building. This was decided by this court in the case of Seidel v. Bloeser, 77 Mo.App. 172, in which this court followed the case of Wright v. Cowie, 5th Washington 341. Orear v. Dierkes Lumber Company, 189 Mo.App. 729, 731. (3) The foundation of the right to a mechanic's lien against real estate and improvements thereon is a contract made with the owner of the same or some authority from the owner to the person contracting for the improvement of the real estate permitting him to do so. R. S. 1909, section 8212; Dierks & Sons Lumber Company v. Morris, 170 Mo.App. 212, 222; Ford v. Dixon, 171 Mo.App. 275.
This is a suit to enforce a mechanic's lien originating in the justice of the peace court in the city of St. Louis. From a judgment for plaintiff an appeal was taken to the circuit court by Simon D. Rossi, the owner of the property, one of the defendants, the other defendant, William W. Gardiner, lessee, did not appeal. The case was twice tried in the same division of the circuit court, but by different judges, each time without the intervention of a jury. On the first trial of the case de novo in the circuit court, judgment was rendered for the defendant. Later the trial judge set this judgment aside and granted a new trial. On the retrial a judgment was rendered in favor of Rossi, the only defendant who had appealed. In due course plaintiff brought this appeal.
The facts in the case are undisputed. In 1912 Simon D. Rossi, defendant below, respondent here, was the owner of an office building located at the northeast corner of Kingshighway and Delmar Boulevards in the city of St. Louis, Missouri, five stories in height. The first floor of the building was subdivided into stores, and the rooms of the four floors above, each floor containing twenty-eight rooms, were rented to various tenants for offices. In the early part of the year 1912 defendant Rossi, the owner of the building, entered into a contract of lease with defendant Dr. William W. Gardiner, which lease was for a period of two years, and provided that Gardiner should occupy rooms 217 and 218 as offices for the practice of dentistry. Under the terms of the lease Gardiner was entitled to janitor and elevator service. The lease also provided as follows:
"Lessor agrees to place partitions and make such alterations as are indicated upon a plan prepared by the architect and signed by both parties and to include a tile floor in the two smaller rooms, and subdivide room 217."
"The lessee agrees to make all other alterations in the way of marble panelling and decorating (italics ours) and to furnish complete room 218 as a waiting room to be used, if necessary, by future tenants who may lease rooms adjoining on the west and north upon terms agreeable to both parties."
"The lessee shall quit and surrender the premises at the end of the term in as good condition as the reasonable use thereof will permit, and shall not make any alterations, additions or improvements in the premises, without written consent of the lessor, and all alterations, additions or improvements which may be made by either of the parties hereby upon the premises shall be the property of the lessor and shall remain upon and be surrendered with the premises as a part thereof at the termination of this lease." (Italics ours.)
While Gardiner was in possession of the rooms numbered 217 and 218 under his lease, he made an oral contract with the plaintiff to do the marble work, panelling, decorating and altering of room 217. This work amounted to $ 110.25. No part thereof was ever paid. Plaintiff duly served notice on the defendant Rossi, the owner of the building, then a lien was filed, and notice of suit given. Thereafter in due course suit was brought...
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